Disability Dilemma

Board members usually find themselves concerned with leaky roofs, not leaky minds. But when the superintendent of the co-op at 200 East 16th Street started forgetting to do basic duties, turning away plumbers and others who arrived to perform work “without” appointments, and even forgetting – under oath – that he’d ever visited the basement in which he lived and had an office, the board eventually found itself facing a tragic dilemma: what do you do when your super becomes disabled? How do you balance compassion with building safety? What are your rights and their rights under the law, and, if they’re union, under the contract? As these two case studies show, even the most seemingly clear-cut situations may not be easily resolved.

“Disability,” first off, is such a broad term that the 2000 U.S. Census puts the number of disabled Americans at 49.7 million, nearly one in five. So, does that mean every building with 10 or 11 staff members averages two disabled workers? No. The census merely counted the number of people claiming self-defined “limitations in physical activities” or “difficulty learning, remembering, or concentrating, difficulty working at a job or business,” in the words of Mitchell LaPlante, head of the National Institute on Disability and Rehabilitation Research’s Statistics Center at a 2002 press briefing.

Severe disability is, thankfully, rarer: according to the Census Bureau, 2.2 million Americans use wheelchairs; 6.4 million need a crutch, a cane, or a walker; 1.8 million are unable to make out words in a newspaper, even with glasses; 800,000 can’t hear normal conversation; 3.5 million have learning disabilities; and 14.3 million have a mental disabilities, including 1.9 million with Alzheimer’s disease, senility, or dementia.

Make no mistake, many disabled people work and work well all around us. Steven Sanchez, a doorman in Roseville, California, has cerebral palsy and lost most of his vision at birth. “One of my eyes is prosthetic, and if I take a hard fall my retina can fall out of my other eye,” he told the local paper. “I can still see out of my left eye, but I can’t drive,” fortunately not required for his doorman job, which he performs perfectly well.

Many physical disabilities, in fact, are relatively easy to work around. If your super has a spinal injury and needs a walker, he can probably still perform his essential administrative and boiler-maintenance duties but needs to have other work, such as lifting boxes, done by a porter. That’s a “reasonable accommodation,” which the federal Americans with Disabilities Act requires.

What’s much harder to face are mental disabilities – particularly when it’s your trusted, much-liked super who’s been a fixture of your building for decades. Two such cases in Manhattan unfolded very differently.

In the more straightforward and easily handled of the two situations here, about six years ago, the super of a 50-plus-unit midtown co-op “was out sick for a couple of weeks, then came back, was out again for a couple of days, and then brought us a note from his doctor,” remembers Michael Donuk, director of operations for the building’s manager, the Argo Corporation. “The diagnosis was dementia,” he says gravely.

Donuk’s first step, at this point, was to inform the board. With the super taking sick leave, Donuk arranged to bring in a fill-super. “One of the [other] building staff, thankfully, was certified to run boilers,” he says, “and so could step in when the temporary super was off-site overnight.” Then, Donuk and the board arranged to meet with the co-op’s attorney. With a solid staff in place and things running smoothly, there was no rush to call an emergency meeting. “We had him come to a regular co-op board meeting” not quite a month later.

At that meeting, the attorney formally confirmed that the board needed to let the super go – since, amazingly, despite his own doctor’s prognosis, the super wasn’t offering to retire – even though he’d been there some 40 years and was of retirement age. “The board president then had a conversation with him,” Donuk says, “to take it to a more personal level, and [Argo] also prepared the standard termination letter, which the board president gave him after talking with him.” The president also spoke with the super’s family.

Because it belongs to a union, the building then went into negotiations with the Service Employees International Union, Local 32BJ. “We have contract language on the issue,” says Kate Ferranti, deputy director of the 32BJ communications office. “Our stance is that we strive to keep every member productive and on the job, and we handle each situation on a case-by-case basis.” In cases of physical disability, “we would work with the employer to figure out a different way to keep the member working.”

Sometimes, that involves surprisingly tough saber-rattling; one of the many people involved with the negotiations recalls the union’s initial refusal to consider termination, even responding to the dementia issue by replying, “So?” James Samson, a partner at Samson Fink & Dubow, says the same thing occurred with union negotiations at 200 East 16th Street, another co-op. “Their attitude was, ‘So, he has dementia. That doesn’t mean he can’t do his job.’” Ferranti says the union could not comment on those cases, but that “we comply with all federal and state disability laws, and we work with each building to insure it remains properly staffed, safe, secure, and clean.”

Peter Grech, vice president and director of educational services for the Superintendents Technical Association and a super himself for 31 years, suggests a good rule of thumb is to offer “six months’ severance pay. That usually satisfies everybody. It’s not written in stone, and I can’t speak for the union, but that’s usually the figure that keeps things from ending up in arbitration” – the next step should the union and the building reach an impasse. “Remember also,” he cautions, “that with everything you do in a case like this, the other employees will be watching, and that may or may not affect morale.”

In any event, that process ended amicably, according to building representatives. Once the settlement was made final and the super’s apartment vacated, the co-op sought and hired another full-time super.

Things didn’t go as smoothly at 200 East 16th Street in 2004. “The building [residents were] very divided,” says the Lovett Company’s Ellen Kornfeld, then the building’s third managing agent in two years. The over 70-years-old super’s mental health had apparently begun to deteriorate. “We knew he had a problem,” says attorney Samson, “partly because when they took a deposition concerning [an unrelated] slip-and-fall case, he couldn’t remember visiting the basement where he lived and where his office was.”

Because the super and his wife, who was one of the door staff, had been in the building since 1972, “there were loyalties in the building despite the obvious circumstances,” says Samson. “[Situations like this] can become a political football.”

And this one did. “People felt emotionally obligated to provide a job for him,” says Kornfeld, who describes the super becoming progressively defensive, argumentative, and forgetful. Because of his apparent dementia, “he never worked, he was always in his apartment, he was abusive to the staff, he was completely unprofessional in his appearance and presentation,” she says. “We’d send a plumber to the building, alert the super ahead of time, and then the super would send him away, saying that he was too busy to deal with them, and we’d be charged for a plumber’s visit.” But the residents loved the super’s wife, who had picked up some of the slack but couldn’t do it all, “and they were willing to accept a non-working super, since they knew she would leave if he were let go and she’d have to commute.”

In such situations, both the board and the managing agent need to steel themselves for the good of the building. That’s not just a matter of practicality, but of law: a corporation has a fiduciary responsibility to maintain its prime asset. After all, you don’t want a boiler blowing up or a flood to destroy the foundation.

“I made a decision he had to go,” says Kornfeld. “I had a problem convincing the new board and many of the longtime residents that this was the right decision, and that I could to do it without being malicious. We encouraged the super to retire. Although he was in his mid- to late 70s, there’s no retirement-age requirement in the union.” When the super resisted, “the way we handled it was to micromanage and document everything. ‘We want this done, this done…’ – and it wasn’t getting done.” In the end, Kornfeld remembers, “about nine other people on the staff were all relieved. They came to me afterward and thanked me.”

In cases where the disability does not, in fact, preclude a super performing his or her essential duties, make sure to modify the building’s emergency evacuation procedures in consultation with the disabled party. The rest of the staff should then be brought up to date on what assistance they may need to give in order to help a disabled colleague exit safely in an emergency. A federal tax credit may be available to help make accommodations comply with the Americans with Disabilities Act.

Aside from any legal obligation, there is a moral debt – both to the disabled individual and to the families whose housing the co-op or condo provides. “Sometimes, people don’t realize the gravity of the situation,” says Donuk. “It’s not an easy, black-and-white thing.” Or, as Samson says: “You don’t compromise the safety of a building because someone is disabled.”